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Synopsis

The Madras High Court recently observed that if during the subsistence of marriage, a woman who is diagnosed with 'ovarian cancer' gets her uterus removed, the same cannot be treated as cruelty to the husband much less 'mental cruelty'. Court reasoned that it would not be 'an act of the wife' but only 'an act of fate or destiny'.

The bench of Justices RMT Teekaa Raman and Justice PB Balaji observed so while upholding a family court's order that had dismissed a husband's plea for dissolution of marriage.

The husband had approached the trial court stating that even before the marriage, the wife was suffering from cancer and this fact was suppressed. Therefore, for suppression of material facts concerning wife's competency to bear a child and on the ground of cruelty and desertion, he sought relief of dissolution of marriage under Section 13(1)(ia)(ib) & 5(ii)(b) of the Hindu Marriage Act.

The family court had found that there was no evidence of suppression of any material fact and before the marriage, there were no symptoms of cancer in the wife. Therefore, it had dismissed the husband's plea. 

When the husband filed an appeal before the high court, initially, it pushed the parties to settle the matter amicably. The couple was given counseling before the mediation centre twice and the judges also interacted with them. Regrettably, these interventions did not yield a positive outcome. 

Therefore, the court decided to hear the appeal, focusing on three main questions: whether the uterus removal constituted cruelty to the husband, if the wife's time at her parents' house for her treatment amounted to desertion, and whether the husband could seek marriage dissolution on the ground of mental cruelty arising from the lost chance of progeny after wife’s uterus removal.

After hearing the rival submissions and perusing the evidence, the court answered all three questions in negative. 

Court noted that the evidence indicated that the husband had filed the marriage dissolution application, seemingly prompted by certain family members who asserted loss of his chance to have a child for the family's line of progeny.

Court highlighted that during the cross-examination, the husband had admitted that there was a possibility of progeny by getting children through the surrogacy method and he was willing for the said surrogacy.

"Some of the evil-eyed relatives appear to have injected inhuman feeling in the mind of the husband to seek for divorce, citing progeny being lost...We thought it fit to reproduce the words of her husband to the wife before surgery 'You be my child, I be yours'. Such a golden-hearted husband was poisoned by some vested interest relatives, to file the divorce petition. Thus, we find that seeking divorce has not stemmed from the heart of the husband but only appears to have surfaced from a communicable disease, viz., ill-effects of some relatives," court underscored.

Therefore, court held the appeal lacking merit. However, before departing with the matter, it ordered that if the husband opts for adoption, the wife shall give her consent to do so, and if the husband decides to choose surrogacy, it recommended the NGOs and Corporates having CSR funds to render financial and medical assistance to fulfill the wish of the husband.

Case Title: Sankara Subramanian v. Sivalekshmi alias Sheela